Thursday, September 24, 2009

The Cliffs at High Carolina—Property Owners' Liability

As part of its continuing “ Dangerous Ground” landslide investigative series, the Asheville Citizen Times reported on August 30, 2009 that approximately 29% of Buncombe County, North Carolina real estate is threatened by landslide-triggering soils.

—The Buncombe County Soil Hazards Map has not been released—

Slope Movements and Slope
Movement Deposits Map

Stability Index Map

Map of Known and Potential Debris
Flow Pathways

Reporter Dale Neal suggested in his article, “Landslide hazards charted,” that these completed (authorized in February 2005) North Carolina Geological Survey maps could help persuade Buncombe County planners of the urgency of establishing meaningful steep slope regulations. It should be noted that all Western North Carolina county planners were apprised of critical-land conditions in 1998.

In his interview with county planner, Jim Coman, Mr. Neal made reference to more detailed hazardous-land maps. The Renaissance Computing Institute's real property disaster maps were given to Buncombe county planners in March 2009 —they identify and rate landslide, wildfire and flooding risks by address. This in-depth real estate risk assessment is part of the county’s hazard-mitigation planning and is required by the Federal Emergency Management Agency

When asked to explain the ramifications of these real estate hazardous-land findings for Buncombe County property owners Mr. Coman said:
Owners of existing homes in high hazard areas could call in engineers to shore up shifting foundations or take other preventive measures to protect their property.
As to landslide-hazardous developments already permitted such as the The Cliffs at High Carolina's 3,200 acre/1,300 lot subdivision Mr. Coman said:
they have a very good engineering staff, their clientele can afford the extra cost.
Mr. Coman presumes that High Carolina clients are aware of the financial risks of owning property in a hazardous-land private street subdivision.

The Cliffs at High Carolina— Disclosure of Hazardous-Land Conditions for Phase 1 Lots

The Cliffs at High Carolina Property Report—October 21, 2008— advised prospective buyers that the 99 lots covered in the document had been evaluated for landslide hazards by the Raleigh-based S&ME engineering firm. Colluvium deposits were discovered in and around the 99 lot tract but:
With respect to all lots, however, S&ME reported that it was its opinion that ‘residential structures can be suitably supported at the lots,’ and found that the identified building area for each lot was suitable as a home site.
The Cliffs at High Carolina—Subdivision Street Disclosure Statement Fails to Disclose Property Owners’ Liability for Maintenance of Roads Built on Hazardous Soils

Developers of private street subdivisions are required by North Carolina law to provide their clients with the following liability disclosure statement.

Sample Subdivision Street Disclosure Statement

Pursuant to N. C. G. S. Section 136-102.6 _______, as the Declarant of _______,
issues this statement indicating that all of the roads within_______ are private. It is the obligation of _______ Homeowners' Association, Inc. (hereafter "Association") to maintain and keep in good repairs all of the private roads in _______Subdivision. It is mandatory for all property owners in _______ to be a member of the Association and the property owners, with the exception of the Declarant, have an obligation to pay assessments to maintain the private roads. The Declarant specifically states that the streets have not been constructed in such a manner to allow inclusion on the State highway system for maintenance.

Occasionally developers will construct their private streets to meet State Highway standards but this does not relieve property owners from their obligations. The North Carolina Real Estate Commission offers the following advice regarding subdivision private roads:
However, if a developer becomes insolvent, is dissolved or dies, the owners alone will have to bear the cost unless a government agency takes control. Since there is no guarantee that any government agency will ever take control of the roads in a subdivision, owners are ultimately called upon to bear the cost of road maintenance in many situations.
Although the use of the standardized Subdivision Street Disclosure form as a conveyance document for hazardous-land subdivisions has yet to be adjudicated this does not relieve developers from providing their clients with all material information.

Jim Anthony, developer of The Cliffs at High Carolina, should be required to include a "Fair Warning" addendum on the Subdivision Street Disclosure Statements and in the federal Property Report. Property owners' liabilities linked to The Cliffs at High Carolina private road system are significant and Mr. Anthony should clearly state them. Before assuming responsibility for The Cliffs at High Carolina streets, property owners should be advised of the following:
This subdivision’s roads were built on likely unstable soils. Landslides and erosion are recognized chronic hazards above a 15% slope. Soil assessments for this subdivision can be found at the Buncombe County Soil & Conservation Office. Buncombe County did not require geotechnical, hydrologic or soil studies for this subdivision. Should this subdivision’s roads be damaged by predictable geologic events, the members of the homeowners’ association will be liable for all repairs.
For an example of the costs of assuming ownership of roads built on colluvial material, please see The Horseshoe Cove Landslide Report—Maggie Valley, North Carolina.

No comments: